Registration solicitations for trademarks, patents and domains

Dear Client or Prospective Client,

   This is a reminder to be aware of registration solicitations for trademarks, patents and domains.

   You may already know of, and have received, solicitations and warnings to register or publish your trademark, patent or application, or Internet domain(s) with what appear to be government or other official looking entities. The solicitation may sometimes be a company offering to monitor your trademarks, patents and domains for possible infringers.

   The entity typically has a name like "United States Trademark Registration Office" or other form following REGISTRATION OFFICE, or MONITORING SERVICE, or may even purport to be a law office in another country.

Most often these offerings are inadequate, if not unnecessary, and are almost always more expensive than if you use a legitimate service.

   As a matter of precaution, always check the address of any letter or email requesting money. Trademark or patent correspondence from the USPTO will be from its office in Alexandria, Virginia (typically P.O. Box 1450), or from the domain "@uspto.gov." Your domain registrar almost always sends email. In 12 years, I have never received snail mail from any of my several domain registrars.

   Correspondence regarding foreign registration or services, such as from the "International Register of Trademarks", or the "International Register of Patents and Trademarks" can be from anywhere in the world because they are always bogus. There is no official international registration entity of trademarks, patents, or domains or even international applications for them.

   Another bogus letter or email ties together trademarks and domains, warning you to register your trademark-like domains with them to protect your trademarks. The letter may mention the "Internet Corporation for Assigned Names and Numbers" (ICANN) or "Trademark Clearinghouse" (TMCH) and may use another abbreviation containing "TLD", such as generic top-level domains (gTLDs).

   While you may be able to legitimately register a foreign trademark or domain, you are most often wasting money if you are not conducting business in the country, and if you will be conducting business in the country, you will need a legitimate partner to monitor and work with you.

Companies in the U.S. will state somewhere that "This is not an Invoice", or "Not a government agency" (if they want to stay out of jail), but foreign solicitations typically lack these because they are beyond U.S. fraud protections.

   If you are existing client and you receive something questionable, go ahead and send a scan or photo to me as a precaution - no charge. If you are interested in a foreign trademark, patent and domain filings, please contact me. I am already filing or handling foreign applications for other clients with local law firms in other countries, and they have the experience to know how to proceed correctly.

Product Design as a Trademark

One of the more enjoyable aspects of my work is working with clients to determine whether and how intellectual property protection is available to their ideas. For the most part, protectable ideas have function or significant creativity. How and to what degree an idea has function and significant creativity is important to both intellectual property protection and to marketability. The best ideas generally have both, while market flops usually lack one or both.

 

There are four types of intellectual property protection. Regular patents protect ideas that have function and are thus in some way related to a definable product. Trademark protects the public aspects (name, logo, etc.) associated with the product or service, but not the product or service. Copyright protects the creative aspects of an idea, which may be incorporated into or related to a product, but like trademark, copyright does not product the actual product. Trade secrets and contracts protect ideas as long as the owner asserts proper care over the keeping the idea a secret.

 

The products of industrial design, unfortunately, generally lack novelty (newness), or are combination of off-the-shelf goods that work as expected (which is called obviousness), or have too much function, so that patent and copyright protection are not available. In addition, a product must be put into the marketplace to make money on it, so the owners of the most product ideas can't keep the product a trade secret, and make money.

 

In large part, the appearance of these design related ideas and products is developed by people with academic training and work experience in the design arts, and often an eye for attractive and marketable designs. Design artists, however, rarely get intellectual property protection for one or more of the reasons above. These reasons are in significant part due to a protection void that exists because of a public policy decision made many years ago. The gist of the policy is that artistic protection of products would stifle competition, while the absence of artistic protection would drive innovation through building on unprotected ideas.

 

To a degree, both premises are correct. Patents protect the idea and ALL derivatives for 20 years, which is effectively an entire generation, while copyright protects the idea and ALL derivatives for a lifetime, plus 70 years, or up to 120 years, depending on ownership at the time of creation. Not surprisingly, some persons at Stanford Law School called this protection FOREVER. See "A Fair(y) Use Tale" at 6:08. One example might be if the design of the Model T had had patent or copyright protection, the pace of automotive design would have slowed so much that we might be driving Edsels.

 

So fortunately for the public, the products of industrial design art are not protected. But, fortunately for designers and the companies, the dichotomy of protection is twisted in two ways. These are through design patents (a type of patent), and trade dress (a relative of trademark).

 

While regular patents protect function, design patents reveal and protect only the design of the product. The first iteration of many products had design patent protection - gloves, shoes, bottles, cars, eyeglass and sunglass frames, a computer mouse, a Batman-like costume, purses, and electronic devices. The limitations of design patents are that the design must still meet the novelty and non-obviousness requirements, function is not protected, protection lasts only 14 years, and color distinctiveness is generally not approved.

 

Though Samsung lost its design patent infringement (Apple, 2012), the iPhone design patent expires in 2020. This does not mean though, that the iPhone design might not protected. As noted above, trade dress is a relative of trademark in providing protection to the public aspects associated with the product or service. The distinction is that trademark applies to names, phrases, images, logos and sound (such as the Intel tune, the AOL mailman, and the MGM lion), which can be protected from first use. Trade dress is quite difference in that it is the appearance seen by the public that gets protection, and protection generally requires five years of use before the owner can even file for registration.

 

Most of the public would recognize trade dress when seeing it. That recognition, in fact, is the requirement for protectable trade dress. Say for example, it is night, you and the family are hungry and looking for a place to eat, but you are also in a hurry and driving too fast to read the signs (but the police are not looking, so don't worry).

 

You first see a place with a horizontal band of an orange, green and red stripe across the doorway, but you don't stop because you know it is a 7-Eleven. Then, you see a place with a horizontal band of a red, yellow and green stripe across the doorway, but you don't stop because you know it is a Taco Bell. Then you see a big guitar with a circular pattern and stop - at a Hard Rock Cafe!

 

These are the features of trade dress - the specific ARRANGEMENT and COLOR the public aspects associates with a product or service to the maker. Another way of looking at trademarks and trade dress is that sufficient differences mean a different company - such as the different color bands between 7 Eleven and Taco Bell, or a huge oboe in front of restaurant means the place is not a Hard Rock Cafe! Which brings us to a recent and interesting case.

 

As stated above, a new design of shoes can the protected by a design patent, but the patent expires after a fixed time. Has the shoemaker then lost protection? Not if in the 14 years of patent protection, the shoemaker made the effort to make sure the public associates the shoe design to the shoemaker. Then, the shoe design becomes protected trade dress.

 

For example, in 1992, Christian Louboutin introduced and started a line of shoes with a red sole. By 2008, Christian Louboutin had so many red sole shoes that the Trademark Office granted him two registrations for red colored shoe soles.

 

Consequently, when Yves Saint Laurent began producing red shoes (soles and upper), Christian Louboutin saw red in more just his shoes.

 

Generally in court cases, one side wins, and the other side losses. Louboutin vs. Yves Saint Laurent has the rare distinction of a win by both sides. Recall that trade dress applies to the specific ARRANGEMENT and COLORS the public aspects associates with a product or service to the maker. Unlike trademarks (words, phrases, images), the Louboutin registration is for the product (red soles) which is a rare registration, so some people thought (and Yves Saint Laurent was hoping), the registration would be overruled. The court, however, upheld the registration, so win by Louboutin, but the court also recognized that the Yves Saint Laurent shoes have both red soles and a red upper. The court said the Yves Saint Laurent design was different enough that the public would recognize the difference, so win by Yves Saint Laurent.

 

Which just about closes this story, except for a question and conclusion. The question is whether Apple will lose iPhone design protection when the patent expires? The likely answer is no, unless Apple drops the whole line. That is because after the required five years (2006 - 2011), Apple filed for and received trade dress registration for the iPhone design!

 

Copyright For Critical Reading and Comp

Copyright protects creative ideas that are perceivably recorded in specific formats. An idea is creative if it more than minimal (a title, a fact, and Bob Spongee are minimal), not functional (furniture, instructions, or a process) and not based on a known arrangement (alphabet, logic, or syntax).

Compare Bob Spongee and SpongeBob Squarepants


An idea does not have to be wholly original for protection, but knowledge of another person's similar work negates protection of the similar ideas. Perceivably recorded means that the idea is permanently documented to be seen or heard, e.g., paper, an audio or visual recording media, digital media, or on a composition of nature, such as stone. Unrecorded ideas are not protected.

Copyright applies to (1) literary works; (2) musical works and their words; (3) dramatic works and their music; (4) pantomimes and choreographic works; (5) pictorial, graphic, and sculptural works; (6) motion pictures and other audiovisual works; (7) sound recordings; and (8) architectural works.
The copyright belongs to the creator from the moment of creation. A copyright may be transferred by assignment, employment, or through law. Assignment means that the creator subsequently transfers the copyright to another person. A transfer by employment occurs concurrently at the moment of creation by the employment contract or in circumstances by which the creation occurred through and for the employer. A transfer through law, which is generally known as a work for hire, applies only to select works, such as a contribution to a collective work (newspaper or magazine), as a part of a motion picture or other audiovisual work, as a translation or supplementary work, as a compilation (anthology or atlas), as an instructional text, or as a test or answer material. A creator may reinstate ownership in certain cases.

A copyright allows the owner to do and control (1) reproduction of the work; (2) preparation of derivative works based on the work; (3) distribution of copies to the public by sale or other transfer of ownership, or by rental, lease, or lending; (4) public performance of the literary, musical, dramatic, and choreographic work, pantomime, motion pictures and other audiovisual work; (5) public display of the literary, musical, dramatic, and choreographic work, pantomime, or pictorial, graphic, or sculptural work, including the individual images of a motion picture or other audiovisual work; and (6) public performance of a digital audio transmission of sound recordings.

Copyright term is the time that an owner has copyrights. For new works, an individual owns the copyright for her or his remaining life copyright, at which time the copyright passes to the family (or company) for 70 years after the creator's death. If a company was the owner at the time of creation, the copyright expires the earlier of 120 years after creation or 95 years after publication (showing the work to the public). The copyright of works created before 1976 depends on many factors, including the money to fight corporations. Walt Disney created and published Mickey Mouse in 1928, so that copyright lapses in 2023. The Hill sisters created and published "Happy Birthday to You" before 1921 but Warner Chappel Music claims the copyright (initially registered in 1935) will not lapse
until 2030.

Marking is a declaration of ownership. There are three minimal requirements for a marking. These are the word "Copyright" or the circle c (©), the year of creation, and the name of the owner. A combination of the word Copyright and the circle c may be used as these focus attention to the marking. If the work is later modified, or republished, the year of modification or republication is added (Copyright © 2010, 2012, Owner Name).

Registration is used to provide a government record of the copyright. Registration is not required to declare a copyright, but is required to show ownership in court of law. An owner should record registration within five years of creation to have incontestable proof of ownership. Registration also provides the ability for compensation not related to losses, which is how a music company gets $30,000 for infringement of a 99-cent download.

Moral rights provide an author the right to dissociate the author from a visual artwork (if for instance an owner uses a work in a repugnant way) and the right to demand maintenance of the integrity of the visual artwork.
Infringement is an unauthorized act of one or more of the six copyrights, of a work protected in one of the eight classes, during the copyright term. Infringement occurs by directly performing an unauthorized act, intentionally inducing or contributing to someone else's infringement, or by having a financial interest and knowing or suspecting of infringement and having the ability to stop the infringement.

Fair use is an unlicensed and permissive exception to infringement. Fair use includes criticism, comment, news reporting, teaching, scholarship, and research, but only a detailed and complete four-factors analysis can determine whether or not a particular use is fair. The four factors look at (1) the form and originality of the original work, (2) the form of the copy as a whole and whether the copy is a non-commercial work, (3) the amount of copied material in relation to the amount in the original and in the copy; and (4) the market of the original material, the market material of the copied material, and how the copied material affects the market for the original material. Two important contrasts are that parody is fair use, but satire is infringement, and that attribution excuses plagiarism, but not infringement.

See http://www.youtube.com/watch?v=CJn_jC4FNDo

Cloud Computing, Part III - Online File Sharing and Cloud-Based Office Suites

This is the third article on Cloud Computing. Part I discussed programs that are accessed and used via the Internet. These programs are rented from Application-Service-Providers (ASP) and Software-as-a-Service (SaaS) providers, and have the benefit that the user never needs to install or upgrade the programs. Their downside is that an active Internet connection is generally always needed to use the programs. Part II covered use of the Internet to provide electronic file backup and restore services. These services are called offsite storage and have the benefit that your electronic files are safe from harm or theft in your office. Their downside is that the files may be subject to compromise both by harm or theft at the offsite location.

Part III, provided here, discusses use of the Internet for sharing documents and for creating and editing documents. This article includes minor technical discussions so that readers may understand the legal and privacy implications for using various file sharing and document creation services.
Online File Sharing

File sharing works primarily two ways, server-client and peer-to-peer. As with ASP and SaaS, server-client means a central computer (the server) holds files and controls access by another computer (the client). Peer-to-peer means two computers are sharing information with each other without regard to either computer being between other computers.

Server-client file sharing predates the Internet through newsgroups (1980), which were also called usenets, or bulletin boards. Each server had a telephone number through which people could connect a computer. The Internet allowed multiple servers and multiple users to connect via telephone connections, with cable and DSL connections later succeeding telephone service. Readers may recognize that web sites, forums, and social media are current examples of server-client file sharing.

Peer-to-peer file sharing means that people may share files without using a intermediary server. Early peer-to-peer file sharing required users to install a common program, such as Napster and Grokster, so a user could tell other users what files were available for sharing, and at least one server to facilitate the exchange of file lists. As many users unfortunately chose to share copyright protected files, the server owners were liable for contributory copyright infringement.

Yahoo took a different tactic and introduced Yahoo Groups to allow people to upload pictures and other files for sharing. Yahoo Groups isn't quite a client-server operation because you can use any web browser and it isn't peer-to-peer because the files are on a Yahoo server. In addition, the users (called "organizers") who create the group have the ability to make the files public or private to select people. Yahoo Groups is free, but there are three important issues. First, the files on Yahoo Groups are not encrypted (unless the uploaded file is encrypted) so anyone with access can read a file. Second, files are publicly available unless access is correctly set to the authorized people. Lastly, as the files are on a Yahoo server, you are trusting Yahoo with oversight that the information will not be compromised.

Like Yahoo Groups, Google's file sharing services are free at a basic level and use a web browser for file operations. Google's Picassa allows for photo uploading and editing. Google docs allows for the ability to have both document sharing and real-time editing of letters and spreadsheets. Another Google difference is being able to control access link-sharing, meaning anyone with the URL can access the document. As with Yahoo Groups, the files on Google docs are not independently encrypted so you must properly set controlled access, and trust that Google employees will not snoop. Server-client services are now generally fee-based, which helps pay for the software, the sharing services, and for file storage.
Other companies allow you to store files in a designated folder on your computer, and the company then copies the files to the computers of people you designate, and its servers. The company then updates the files on all computers with automatic peer-to-peer updates. Examples of these companies include Dropbox, Box.net, FilesAnywhere, CloudMe, CrashPlan, Egnyte, iCloud, Mozy, SpiderOak, SugarSync, TitanFile, Ubuntu One, Windows Live SkyDrive, Wuala and ZumoDrive. Most of these companies have a tiered free/ fee service plan for keeping the files current regardless of whether you or another users make changes. Most companies also have applications for Android, BlackBerry, iPad or iPhone so you can keep your files current across all your devices.

There are major concerns with these services. First, the folder of your computer may be a 'public' folder that provides for public access to anyone who has the link (this is like Picassa and Google docs), so you must be careful to place sensitive files in the correct folder. Second, if you lose a mobile device, you must remotely delete the folder on the device, or the files, or remotely erase the device. Third, as with any offsite file storage scheme, you trust the integrity and confidentiality of your electronic files to a third party. As previously mentioned, personal encryption is the only way to have complete assurance of confidentiality. Lastly, these companies sometimes go out of business, so you should have a separate backup of every file you store online.

Cloud-Based Office Suites

Cloud-Based Office Suites are basically online document creation providers. Depending on the provider, you open your browser to the provider's website, login, use the provided features to create and format a document, and set permissions of who can set and edit the file. The market is still in flux, but the primary players in the field are Google Apps, Zoho, and Microsoft Office 365 (which replaces Office Live).

Google packages it's Apps' service as a combined email, document, and calendar/ ToDo service with tiered free/ fee plans. You register for a google email (gmail) address, such as yourname@gmail.com, and for free, you get 7 GB of storage for email and documents. There is a slight perk that free file storage slowly increases at 128 MB per day. For a nominal $50 per year, the storage is bumped up to 25 GB per year. As an online office suite, Google Apps is austere. You get the basic font formats, plus nine paragraph formats, most of which apply to titles and headings. The basic file, edit and insert toolbars, functions and symbols are available, as is an equation toolbar. You also have the ability to share documents by assigning read or write privileges to individuals (collaborators) through weblinks, or to the public, or to publish the file on a webpage. Google services are also available for Droid and Blackberry Smartphones. Google also has a Groups (discussions) feature, and is getting into the online meeting business (openmeetings) though at this time I would classify the openmeetings service as being in beta testing stage.

Zoho (which has a corporate office in Pleasanton) touts itself as an online provider of 22 collaboration services. Some are the same services as Google (including a Zoho.com email address), and in fact, Zoho allows you both to register using your Google login, and "lets you seamlessly manage members of your private community from Google, attach files from Google Docs and much more, from within Zoho apps." Zoho, however, surpasses Google as a business service provider by providing an accounting application, a CRM (customer resource management) application, HR services, discussion groups, project management, online meetings and other applications. Like other online providers, Zoho is a free/ tiered fee service provider. All Zoho services have a free minimum level with 1 GB of storage (total). Each service also has an enhanced paid service, such as $3 per month per additional 5GB of storage. The free HR service tracks up to 10 employees, with more than 10 employees costing $49 per month, The free online meeting service is one host-one participant-one hour per meeting, while one year of one host - five participant unlimited meetings is $115. This is much less than gotomeeting, which is $49 per month, though gotomeeting allows for more attendees. The advantage and yet drawback to Zoho is its pricing structure. You can buy only the services you want, but to get bulk pricing, you'll have to call Zoho and talk to a customer service representative (unless you work in the 4900 Hopyard Road building).
After years of sticking to packaged software, Microsoft finally relented in 2011 to the 21st Century and introduced Microsoft Office 365 as its cloud-based application suite. The advantages of Office 365 are that if you are used to Office 2007 or Office 2010, you'll likely be comfortable with the ribbon features of Office 365, it has more office suite features than other online applications, and the pricing isn't bad. Office 365 is just $6 per month per user for the usual office suite applications with 25 GB of storage. Businesses with corporate email and IT functions might consider the enterprise-level packages which have file sharing and online meetings, though the lower level enterprise package bizarrely does not allow office suite file editing.

Overall, moving some work to the "cloud" is beneficial for mobile access, sharing, and storage. Google docs allows me to type notes on my smartphone during meetings, then to upload the file for safe storage, share the file, and make changes later, regardless of whether I'm at my desk or elsewhere. A free Zoho account allows for in-office and remote business administration work.

Heavy Use Disruption

If there will be one significant problem to Cloud Computing, it will be resistance from Internet Service Providers regarding the amount of data (files and programs) sent through their service lines. For example, Comcast instituted in 2010 a zero-tolerance rule for heavy Internet users, which Comcast saw at the time primarily as people illegally downloading movies. Under the zero-tolerance rule, any user exceeding 250GB of broadband use in a calendar month, which means both downloads (office suite use and movies) and uploads (storage) gets cut-off - with no notice or appeal. At the time of putting the rule in place, 250GB of use was both rare and generally due to illegal downloads. Now, however, the combinations of online storage uploads, online Office Suite downloads and legal movie (Netflix, etc.) downloads will and has raised monthly usage to a significant fraction of the 250GB limit. The rule, however, is blind to legal use of the Internet, and these services may cause a Comcast user to permanently lose service without notice. Consequently, Comcast users should monitor their use to prevent disruption, or upgrade to a business plan.

Online File Sharing and Cloud-Based Office Suites provide ease and assurance for backup storage, sharing and collaboration, automatic updates, and remote access to improve personal and business operations for both office and mobile situations. These are tempered by concerns for confidentiality and generally minor, but potentially significant uncertainties. In the balance of relieving apprehension and uncertainty in office administration, and adding complications, Online File Sharing and Cloud-Based Office Suites have significant benefits for the legal office.

Copyright ©2011 Gerald R. Prettyman. Gerald R. Prettyman is an Intellectual Property and Patent Attorney serving entrepreneurs, start-ups, and established businesses seeking to protect and profit from their ideas. Please visit http://GotABrightIdea.com.

Cloud Computing, Part II - Electronic File Backup

Going paperless has been a computing mantra for decades. Lawyers have experienced the opposite result - more paper files than ever, but this is because the computer era generated more information for review. As electronic files are sensitive to media failure, backups are needed.

Onsite electronic file backup use attached servers, drives and network-attached storage (NAS). These are generally low tech, making them inexpensive, and even portable. These advantages are offset by the risk of data loss from hardware failure, disaster damage, and of hardware theft or data breach with the resulting worries about client and office data security. (This is a reason to use encryption software in your office).

The fast-pace of electronic storage development also created a problem for the recovery of data stored on media which became obsolete in as little as 5 years.
Offsite electronic file backup and online document storage reduce these problems by moving data and its inherent problems to the data storage company. Offsite electronic file backup refers to an offsite company with servers to which onsite files are copied. Some users even keep their files offsite and download the documents for viewing and editing, then upload the changed document. This was called online document storage, but the inability to handle multiple users and the upload and download efforts limited the attractiveness of both solutions.

In 2010, Application-Service-Providers (ASP) and Software-as-a-Service (SaaS) providers developed software that could handle multiple users and made offsite electronic file storage and recovery easy and inexpensive. For clarity, we'll address offsite electronic file backup first and then online document storage.
Offsite (online) backup software may be ASP, SaaS or both. The major benefit of online backup is the assurance that a hard drive failure, theft, or local disaster does not wipe out your data. With some companies, you also have remote access as well when you are out of the office.

There is though two points of concern regarding data security. The first is during data transfer where if you are on an unsecured (public) Internet system, your files are available to snooping during transfer. The second is during storage, where your files might be accessible to anyone with electronic or physical access to the servers.

While the online backup companies state your data is protected, the actual circumstance might be different. Unless the data is encrypted before leaving your computer, your protection is dependent on the online backup company not snooping, and on employees adhering to a 'privacy' policy. Employee data breaches (theft) were a common way to farm email addresses for the spam market, which led to several lawsuits (Ameritrade, among them). These breaches resulted in some companies paying for credit monitoring for the affected individuals, and forced the companies to use data encryption. Electronic file backup companies, however, are not required to encrypt your data. (This is another reason to use encryption software in your office).

Another concern with online electronic file backup regards the tolerance of Internet Service Providers to heavy Internet use. Electronic file backup counts against your monthly limit, so if your ISP limits you to 250 GB of monthly service, your first backup should be spaced over an end and start of two months. Here is some information about a few online electronic file backup companies as of July 2011.

Adrive (adrive.com) provides three levels of manual (not automatic) backup service, Basic, Signature, and Premium. The Basic plan provides 50 GB of free storage using a SaaS (browser) interface, and it has file sharing (discussed in Part 3). To use the Basic plan, you open your browser, logon to Adrive, which opens a special window, and then select and transfer files.
The Signature plan is $6.95 per month for 50 GB of storage and includes ASP desktop software, which has more functionality than the basic (browser) plan, and some useful additional services. The Premium plan starts with 100 GB of storage at $13.95 per month and includes the same services as the Signature plan. Two other selling points are that Adrive allows you to backup any computer or drive connected to your computer, and ADrive has Zoho online editing (discussed in Part 3).

Adrive has two significant disadvantages. First, Adrive lacks both transfer and storage encryption, so you MUST encrypt confidential files before uploading them. Second, Adrive storage is prone to file redundancy and orphans. If you rename or delete files on your local drive, you would have to manually rename or delete the files from the 'Adrive' backup, or have the old files still in Adrive storage. This can be good if you like keeping old files, but it also increases your storage use and expense.
To recover your files, you access Adrive through your browser or the ASP desktop software, and manually select and download the files. This may take a significant amount of time for a total data loss and would count towards your monthly ISP service limit.

Carbonite (carbonite.com) is a two-tier automated and encrypted backup service. You download and install the Carbonite software. It then runs in the background, waiting for you to walk away so it can backup your files. Carbonite automatically copies and encrypts your files and transmits them to the Carbonite server for storage. Carbonite also allows you to create a custom encryption key.
The Carbonite Home/Office plan provides unlimited online backups for $59 per computer per year. Carbonite automatically deletes from its files any files that you renamed or deleted, but with a 30-day delay, so there is usually enough time to realize and recover files you want to keep. To recover files from Carbonite, you go online, log in and download the files. Carbonite also has a smartphone application that allows file access from the iPhone, iPad, Android or BlackBerry, except for custom encryption users.

Carbonite 'unlimited' backups are not really unlimited. Carbonite does not automatically backup software programs (executable files), temporary files, system files, or files from network or external drives. You can manually backup videos, executable files, files larger than 4GB, and additional internal hard drives, but these are manual operations in the Home/Office plan. Carbonite also slows uploads when over 200 GB is on its servers.

The Carbonite Business plan allows an unlimited number of computers, and permits external hard drive backups, but limits the account to 250GB of backup at a pricey $229. Additional backup space in 50GB increments is available for $46 per year. Unless there are five or more computers, Carbonite might be overly expensive compared to other services.

Mozy (mozy.com) is also a two-tier plan automated and encrypted backup service. While easy to use, Mozy has quirky pricing plans. Mozy charges $71.88 per year for 50GB and one computer, which is more expensive than Carbonite, or $119.88 for 125 GB. Additional computers are another $24 per year per computer plus an additional $24 per year for a mere 20 GB of storage. A comparison to other services and actual conditions would require a spreadsheet. On the plus side, recovery via Mozy is somewhat smooth through the restore manager in the software that allows file streaming directly to your computer. Mozy also has free iPhone, iPad, and Android applications so monitoring and viewing your backups.

Backblaze (backblaze.com) is a single-tier automated and encrypted backup service. Like Carbonite and Mozy, the program runs in the background, waiting for you to walk away so it can copy, encrypt and transmit your files. You can also set Backblaze for manual activation, meaning you can walk away for a break and not have the computer occupied in a backup that takes a couple minutes to disengage.
At $5 per month per computer (or save $10 by purchasing a year for $50!) with unlimited storage, Backblaze is effective in both ease and expense. Backblaze also allows you to create a custom encryption key. This free service means that no one but you can decrypt the files - not even Backblaze, so there is no encryption breach-risk.

On addition, you can change the settings and backup executable files and large files, and backup multiple internal and external (USB) drives, but not network drives. Adding these files can result in significant data streaming, which might cause a problem with your ISP limit.

Recovery with Backblaze over the Internet is free, but as with the other services, file streaming is time-consuming. Backblaze offers a DVD recovery at $99 per disk and a USB drive is $189. Backblaze also has a computer location tracking function, but not mobile applications.

IDrive (idrive.com) also provides tiered service. IDrive allows 5 GB free, 150 GB at $4.95 per month per PC, 500 GB at $14.95 per month for up to 5 PCs, unlimited storage for $49.50 per year for one computer with there is another plan of $9.95 per 50 GB per month for multiple PCs, and higher storage of a higher price. As with other companies, if you delete the data from your desktop, the company deletes the corresponding data from its servers after 30 days. The problem with IDrive is that after 150GB of data, IDrive throttles your upload rate, so uploads are slower.

There are many other companies in the market, and some companies now work with you to provide both local and offsite backups. For lawyers, the primary consideration should be encryption (more on this in Part 3). Data breaches are a substantial risk and at a minimum could result in paying for credit monitoring for clients plus other expenses and fees. The other considerations of the amount of storage and the ease of use for backups, access, and recovery, are essentially a matter of price. This author has used Backblaze for over a year, primarily because the balance of encryption, limited functionality, and price work well in this office. Offices with several computers or sites would likely select a different service. Another consideration is the use of local encrypted backups as well.

Gerald R. Prettyman is an Intellectual Property and Patent Attorney serving entrepreneurs, start-ups, and established businesses seeking to protect and profit from their ideas. Please visit http://GotABrightIdea.com.

Cloud Computing, Part I - Software: ASP and SaaS

Marketing hype (illusion) portrays cloud computing as the newest revolution in computers. In reality, cloud computing started about the same time Joni Mitchell sang "Both Sides Now", to create an interactive network ("from both sides") of computers and information transfer with many users distributed over a wide area. The term cloud with respect to information transfer is even older, having its origin in the use of a cloud to represent a network of interconnected users in telephone network patent applications and other documents. So if you "really don't know clouds at all," these articles are for you. (Use of "Both Sides Now" is fair use for purposes of education.)

The abbreviations ASP and SaaS respectively mean Application-Service-Provider and Software-as-a-Service. To a legal office, they are essentially the same. The legal office has a personal computer, laptop, tablet or other computing device that receives one or more programs via the Internet (cloud) from a provider company that stores the programs on its own computers, and that provider company is responsible for writing, providing and updating the software.

Corporations and academic centers of the 1960's to the mid-90's used a similar concept with the mainframe and 'dumb' terminals. The major distinction between then and now is that the mainframe both stored the program, and handled all the computing tasks. The terminal was merely an interface and output display, hence the 'dumb' term. ASP and SaaS push the program to the personal computer, which with its significant electronics and operating system handles the computing tasks, the data storage, the interface devices and the display.

As with the mainframe and dumb terminals, the cloud is the communication network between the program storage computer, and the display. The major distinction of ASP and SaaS is in reducing program storage and redundancy in the personal computer network.

An ASP program mimics the traditional form of a personal computer (PC) loaded software by handling the information computing, interface, and display. In other words, ASP programs take the place of your PC stored program, including software for the menu bar that displays commands, and the programs performs the commands for local operations such as opening and closing files, viewing and printing information, and passing instructions to the computer on performing these tasks.
The ASP advantage is that the software company can lower its efforts (time, expense, etc.) of writing software for these common local operations, and the legal office avoids installing the same program on multiple computers. ASP, however, can still have conflicts with hardware or other software running on the PC.

SaaS programs, on the other hand, handle the computing work on your PC, but lets your computer handle the local operations through another program on the PC, such as the browser. Thus, SaaS additionally reduces conflicts at the user's end, and because every SaaS program has the same interface for all programs, the SaaS user doesn't have to learn multiple menu bars (or ribbons) or configure multiple programs for viewing and printing information.

Theoretically at least, ASP and SaaS software is less expensive as well since the software company has lower expenses, and the ASP and SaaS user doesn’t have to spend effort, time and money loading and updating software.

In a sense, ASP and SaaS provide a somewhat back-to-the-future theme. There are discussions, and certain components already in place, to lower PC costs by returning to dumb-terminals, i.e., a personal computer that lacks even an on-board operating system. Microsoft, not surprisingly, is not enamored with the idea.
For the legal office, most software categories are or soon will be available by ASP or SaaS. An online search for "asp legal software" for example, returned many links for Case Management Software, Litigation Support Software, and Document Databases. The American Bar Association has a free website titled "FYI: Software as a Service (SaaS) for Lawyers" at http://tinyurl.com/ABASaaS. The website has several pages of current information on multiple topics, including features to look at, such as:

Time & Billing Software: Comparison Chart
Practice & Case Management Software Comparison
Litigation Support Software Comparison Chart
FYI: Starting a Website
FYI: Software as a Service (SaaS) for Lawyers
FYI: Feature Comparison - Major Blog Providers
FYI: Playing it Safe With Encryption
FYI: Technology Terms Defined
Metadata Ethics Opinions Around the U.S.
Metadata Comparison Chart: 50 State Map

The primary disadvantages to ASP and SaaS are service interruptions. These occur if Internet service is not available or slow, the ASP and SaaS provider is offline, or if an upgrade of any software, installed or cloud-based, causes a problem. The first three conditions are equivalent in frustration to a power interruption, while the second is a constant threat to any software use.

The due diligence is researching the Internet and other users to be certain the cloud-based software will not cause a service interruption, and determining in advance how to deal with a service interruption. When properly balanced and licensed between service and fees, ASP and SaaS are worthwhile to effortlessly keep software up-to-date without on-hand 'IT' effort.

Why file your corporation or LLC in California

I received a question about filing for a business outside of California. While I agree that paying $800 year for a small business is ridiculous, the solution is not becoming a foreign (out-of-California) entity. I'll explain below, but the best solution sometimes a simple proprietorship or partnership. Here's why.

Any limited liability entity headquartered in California needs to register in California.
1) Filing in California gives you the privilege of enforcing your contractual rights in California. A court will dismiss a non-registered plaintiff because the privilege to enforce your contractual rights is in the state of the headquarters, as documented by the Articles.
2) California requires entities doing business in California but registered outside of California to file as a foreign entity. The filing expenses are the same and this provides full rights (including name protection through registration), but at the same annual cost of income tax (Franchise Fee). A foreign entity can omit the foreign entity registration if its operations in California are insubstantial, as by being transient or without an instate office, officers, or employees. If a person with the entity lives and conducts business for the entity in California, it qualifies as a foreign entity. Another way of thinking about registration is whether the entity is active in California. If the assets and operations are in another state, foreign entity registration is less likely a requirement.
3) While its true that other states do not require disclosure of officer names, a good sleuth can get the names without a lot of effort.
4) In every state, you must name an agent for service of process. Outside of California, that means 'hiring' a company to have a doorway and a person inside the door during regular business hours. The job of the person is to receive lawsuits and notices. The job of the person is NOT to make sure you receive the lawsuit or notice. An entity is subject to a default judgment and registration suspension if the entity fails to timely and properly reply.
5) Some states require you to effectively include portions of the operating agreement (bylaws) in your articles. This can tell people far more about your company than the company name, and require significant effort making sure the articles comply with the requirement.
6) California is comparatively lax about how the owners run the entity. Don't commit fraud, or break financial or security laws, and you are OK. Other states tell you how to run your business and require these statements in your articles or operating agreement.
7) Lastly - failure to register in California may result in substantial fines based on income and the minimum franchise fees.

As to non-registration (a simple partnership):
The usual goal of small business registration is limited liability. Liability arises from contractual obligations or negligence. If the business hasn't signed contracts of obligation and is not yet providing a product or service, the risk of liability is basically the same as having a hobby. If an obligation would risk more than you have on-hand to fulfill the obligation, then limited liability is warranted. Otherwise- what is there to worry about? If at some time you must register and quickly, there are ways to get registration within a week or two for the expense of a few hundred dollars, which is much less than the annual minimum franchise fee.

Also - many insurance companies offer errors and omission insurance. O&E covers you for business losses based on circumstances outside your control, generally including simple negligence, and some contractual obligations based on the policy. You are not covered for gross or intention negligence, fraud or breaking financial or security laws - but then limited liability does not cover those either.

Lastly - if you want name or brand protection, the filing of a city business license, county fictitious statement, and state and federal trademarks decently provide that protection. Caveat - the California Secretary of State does not crosscheck the business entity and trademark registrations. You get that security ONLY by registration.

What Is a Nursing Home?

I received a question about the definition of a Nursing Home. Over the years, I have visited many family members in such facilities. When I worked as a laboratory medical technician, I worked in the acute care areas of hospitals, in their care units and clinics, and in their adjacent nursing facilities. Thus, I have many, many memories of such places, and it turns out, the definition of a Nursing Home is a legal question suitable for this Blog.

In California, a 'nursing home' is not legally defined, but taking the term and words 'nursing home' generically, 'nursing' infers nursing care is provided while 'home' infers the facility provides long-term care. This seems reasonable in that California defines certain patient care services as within the practice of nursing. (Cal. Business & Professions Code Sec. 2725 et. seq.).

Under California law, there are many different types of facilities that could fit the generic term above. In reading these definitions, the rational for defining facilities seems to be based on (1) the different types of services provided, and (2) the facilities' staffing availabilities.

For example, a "general acute care hospital" provides medical, nursing, surgical, anesthesia, laboratory, radiology, pharmacy, and dietary services. (Cal. Health & Safety Code Sec. 1250(a). A Skilled Nursing Facility (SNF) "means a health facility that provides skilled nursing care and supportive care to patients whose primary need is for availability of skilled nursing care on an extended basis." (Cal. Health & Safety Code Sec. 1250(c)). An "intermediate care facility", on the other hand, provides "skilled nursing supervision" but not "continuous skilled nursing care". (Cal. Health & Safety Code Sec. 1250(d)). So for most people, a nursing home is likely a Skilled Nursing Facility or at least an Intermediate Care Facility. These should also fit the definition of a "nursing facility" under the Medicare and Medicaid programs. (Cal. Health & Safety Code Sec. 1250(k)).

California also differentiates based on patient and resident needs, as by whether the patient or resident is ambulatory (able to walk) and whether the person's infirmity is physical or mental, temporary (rehabilitative) or degrading, chemically related, developmentally related or generally age related or some other type.

Another distinction is by the vocation of the person providing the services. A doctor is present at all times at an acute care center. (Cal. Health & Safety Code Sec. 1250(a)). The definition of Skilled Nursing Facility, however, omits "medical staff". The SNFs I've seen though, were adjacent to or close to a hospital so medical staff was at least close by.

The legal definitions may also have developed to provide for nursing supervision (an "intermediate care facility") rather than nursing care (SNF). When I worked as a laboratory medical technician, a doctor made periodic visits while a seasoned Registered Nurse (RN) was present at all times in the facility and supervised the care given by less experienced RNs and the Certified Nursing Assistants (CNA) (a.k.a. Licensed Vocational Nurse outside of California).

Later in my career, I observed that the person making the periodic visits wasn't the doctor, but rather the seasoned RN, with a less experienced RN supervising the care given by the CNAs.

Now, with the exception of an acute care facility (a.k.a. hospital), it seems RNs are gone from most nursing facilities, and the only CNA is the pill-passer. The other care providers may have vocational training but it seems they are not certified or equivalently licensed.

My other observation is that many facilities have silently dropped the term "Nursing" from the business name because (seemingly to me) no one in administration, on staff or visiting has any significant nursing care training. Instead, they have "care managers". I'm told "care managers" have at least 'minimal care training but in my ten years of dealing with them, it seems more 'minimal' than 'care'.

As such, this article has gone full-circle. Based on law and my observations, a place with the word 'nursing' in its name likely provides nursing care and has (I hope) an RN on hand at some time during the day with CNAs providing nursing care and pill passing. If 'nursing' is not in the name, there is likely no RN, no CNA or otherwise, in the building - except perhaps for a patient or resident.

Tattoos and Copyright

There's a sort of a boxing match going on now whether Mike Tyson's tattooist has a legal interest in the tattoo on the face of Ed Helms in the Warner Brothers movie, "The Hangover, Part II". The lawyers for S. Victor Whitmill, the tattooist, will disagree with me, but my answer is no.

Copyright protects "original works of authorship [that] can be perceived, reproduced, or otherwise communicated". (17 U.S.C. §102 (abridged)). Like most ideas, many works of art are not wholly original as there is some background in a previous work. Many people, including S. Victor Whitmill, call this inspiration. As a hard rule, requiring complete originality would disallow copyright because inspiration would negate originality to the whole of the work. Fortunately, the U.S. Supreme Court opened originality to "a two-fold requirement of independent creation and some minimal degree of creativity." (Feist.)

The benefit of this two-part independent creation and creativity rule is that a tattoo artist can get copyright protection in the portion not copied from the original. Thus, a tattoo artist does not get copyright protection by making a tattoo of a picture (because that is not independent creation), but the tattoo artist can get copyright protection in the inspired portion that has at least a minimal degree of creativity. In other words, the copyright protection may include an inspired portion, but not a copied portion.

Which brings us to whether S. Victor Whitmill has a copyright. He admitted his work was not independent creation. The crux of Whitmill's success will be in showing his work is creatively different, and not just different than the Maori tattoos that inspired him. That's because there is more to creativity than inspiration. The Warner Brothers lawyers will attempt to show that the Tyson tattoo is a combination of Maori tattoos, other tattoos, and even other art as well. This type of debate is common in copyright disputes to disallow the claimed creativity by showing that the parts that are independent from a major inspiration are common elements in the theme of the work, in essence, copied from elsewhere in the field of the art.

For example, movies often contain common elements, guns in westerns, jumps in car chases, etc. Even tattoos contain common elements. Many tattoos are a kind of 'warrior' brand of art by including knives, other weapons, pseudo-weapons, slogans, etc. The Warner Brothers lawyers will likely parade people and photos to the judge's discontent to show the Tyson tattoo is merely a combination of tattoos and weapons.

This anti-copyright argument has its basis in that we as a society do not want someone to use a variation on a theme to lock up copyright protection to the theme. In other words, Maori tattoos have been in existence for a long time, there are many books on Maori tattoos, and tattoo artists study tattoos just as any artist studies works of their peers and predecessors. As a society, we do not want art to lock up a marginally creative idea that prevents its enjoyment by everyone.

Looking at the Tyson tattoo, in fact, reveals the elements of knife-like tips, curves, and double and triple parallel lines that are thematic to Maori tattoos. The three-piece knuckle slasher, meanwhile, is akin to that of Wolverine, i.e., a weapon. As they say in law, in the totality of circumstances, the creativity of the Tyson tattoo is thin, so thin in fact, that Warner Brothers is free to copy it.

If you are or know a tattoo artist, do not be discouraged. Tattoos are art, and copyright will protect sufficiently creative art. Before you ponder on, though, consider copyright registration for your tattoo art, the filing fee is only $35. The Copyright Office rarely denies registration and registration is proof of both your creation of the art and the date of creation. Besides being inexpensive, registration is a requirement before you can sue for copyright infringement.

Latest Car Rental Scam

Latest Car Rental Scam – Charges for Pre-existing Damage and Loss of Use

It's practically a law of economics that when corporate business falls in a recession, each consumer must pay more to make up the difference. Case in point: You rent a car, have an accident, and under the contract, you are responsible for the costs of repairing and lost use of the car, but minor scratches are no-cost normal wear. Right?

Not anymore. Several articles in the last two years note that car rental agencies are dinging renters for damages that don't even qualify as dings. One renter failed to receive his $763 deposit, which according to Thrifty was forfeit for damage. The damage in the photograph, however, was a "barely visible nick on the car door and a small scratch on one bumper."

One Enterprise renter received a bill for $600, with a photo of the damages – except that the car in the photo was not the car he had rented. An Enterprise renter failed to mark normal wear damages on the check out sheet, and was charged several hundreds of dollar for the cost of repair and the time off the lot to repair the "damages."

So, what's a car renter to do? The first step before leaving home is to check whether your insurance or credit card coverage includes rental cars. It is also always a good idea to travel with your proof of insurance and agent contact information.

The first step on the lot is to carefully inspect the car – outside and inside - before starting the car, and mark the checkout sheet with every scratch, spot, or smudge. Be sure also to completely check the headliner, seats and carpeting for food stains and tears. Document everything.

The second step is to photograph the car before leaving the lot, include the built-in date & time stamp – so you can use your evidence against theirs. As one former car rental agent said, "From my experience, many customers were blamed for damage they did not cause.”

Another option, as much as it pains me to say to say this, is to purchase the Collision Damage Waiver (CDW) or Loss Damage Waiver (LDW). CDW and LDW are not collision insurance. It just means that the rental car company will pay for accident damage or loss of use that occurs to the vehicle.

Lastly, when returning the vehicle, either demand a full drop-off inspection before you leave the lot, or again photograph or videotape the car – and let the agent know that you did. As the former car rental agent also said, "agency employees aren’t in the customer service business. They’re paid a commission [based on] the dollar amount we’ve brought in each month and quarter."

If after all that, you do get dinged, you have a few options. If your credit card is charged, call your card service number and dispute the charge with a demand that the car rental agency provide a body shop repair invoice.

Then call the rental office, get the name of the person you are talking to, demand a retraction of the charge until you are provided proof of damage and proof of repair and remind them that you have evidence that contradicts them.

Don't be surprised if you are told regional office approval is required. It's may be another stall tactic, but ask the agent for the name and telephone and fax number of the person at the regional office. If that fails, write a letter of dispute to the corporate level and copy the state insurance commissioner in the state in which you rented the car. Be sure to include copies of your evidence and that you are disputing the charge with a demand that the car rental agency provide proof of damage and a body shop repair invoice.

Your last option is small claims court, although don't be surprised to hear from the rental agency that the contract states that disputes must first be arbitrated somewhere outside your state, and likely not even the in the state where you rented the car. If so, contact the insurance commissioner in both states, and a consumer advocate agency in the company's 'home' state. Your local TV station also provide consumer advocate service – rip-offs make for good news.

References

Christopher Elliott, Washington Post, Paying upfront for rental car nicks and scratches, 11/14/2010, http://www.mercurynews.com/travel/ci_16596785.

Christopher Elliott, Tribune Media Services, Broadsided by a rental car bill, July 29, 2009, http://articles.cnn.com/2009-07-29/travel/rental.car.repair_1_rental-car-car-from-enterprise-rent-a-car-significant-scratches?_s=PM:TRAVEL

Christopher Elliott, Washington Post, 6 secrets car rental companies don’t want you to know, April 16, 2008, http://www.elliott.org/blog/6-secrets-car-rental-companies-dont-want-you-to-know/

Christopher Elliott, Tribune Media Services, Who should pay for scratch on rental car? 9/3/2010,
http://www.msnbc.msn.com/id/38937917/ns/travel-travel_tips

http://www.startribune.com/lifestyle/travel/102215919.html

Rent A Car – Preparation, 9/4/2010, http://www.smartmotorist.com/auto-financing-warranties-and-leasing/rent-a-car.html

http://www.failingenterprise.com/forums/enterprise-rent-car-customers-forum/11817-rental-scratch.html

Introduction to Copyright

(FN1) Copyright provides the creator of a qualified work the legal authority to prohibit, or conversely, the right, to grant and limit another person to make a copy of the creator's work. The legal considerations regarding copyright include the qualified work, limitations on the copyright, registration, and licensing. Copyright is a property right, meaning that the creator may sell, give, exclusively license or assign, or even grant non-exclusive licenses. Other laws describe the creator's right to recover an assignment, as well as defining circumstances when the nature of employment grants ownership in the work to another person.

QUALIFIED WORKS
Copyright applies to eights types of works. These are (1) literary works; (2) musical works, including any accompanying words; (3) dramatic works, (such as a play or musical) including any accompanying music; (4) pantomimes and choreographic works; (5) pictorial, graphic, and sculptural works; (6) motion pictures and other audiovisual works; (7) sound recordings; and (8) architectural works. (FN2).

As indicated by the list of the qualified works, some works may include other types of work. A musical composition may have multiple copyright owners because one person authored a literary work, such as a poem or book, which became the lyrics, and another person authored the notes of the musical composition. Conversely, the producer of a play, a musical or a screenplay could create and own the copyright in the words of the work, and in the music accompanying the work if the same author also created the music.

In other situations, a song composer might grant a license to a band play a song. The band might then perform the song for a recording studio, which would own the sound recording rights, while a movie studio may hire the band and a choreographer for a movie. In a majority of cases, the band still owns its performance rights, the choreographer gets the rights to the dance moves the choreographer wrote for the backup performers, while the movie studio would own the movie rights. Along the way are artists creating posters (pictorial and graphic works) for the band, the recording studio, or the movie studio.

One point of clarification regards a confusion of copyright with patents and trademarks. Copyright protection does not extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work. (FN3). These protections apply only to patents, if the idea is eligible, or to trade secrets, if the idea is used in business and is properly kept a secret. A copyright protected work, generally artwork, may be used as a trademark, if the work is properly used to identify a brand of product or service.

LIMITATIONS ON COPYRIGHT
While there are eight types of works protected by copyright, there are only six legal rights to the power of a copyright owner to prohibit, or conversely, the right, to grant and limit another person to make a copy of the creator's work. (FN4). The six legal rights fall into two categories, the right to copy, and the right of public performance. If a type of work is not covered by a copyright, then the public may freely exploit that type of work. As a matter of implicit exception, people have the right of private performance. The qualifications of a private performance, however, are limited. Home performances are usually private, although any commercial activity related to the performance is often enough to qualify as a public performance.

The first of the rights applies to all eight types of work. The creator may grant permission to anyone to reproduce the work in copies, or in the case the sound recordings, as phonorecords. A copy literally means exact reproductions. A song composer or the composers of the music and lyrics the composers may grant a license to a sheet music publisher to reproduce the sheet music. A band may record an album at home or rent a studio, and grant a license to a music publisher to reproduce the recording.

The second of the rights applies to disposition of the copies, i.e. the reproductions. The creator may grant permission to anyone to copies or phonorecords of the work to the public by sale or other transfer of ownership, or by rental, lease, or lending.

The third of the rights applies to the creation of derivative works based on the work. A derivative work is something other than an exact copy of the original work, such as taking a photograph of a painting, a painting a picture onto a tile, creating a motion picture based on a play, or even taking an image and distorting it for artistic purposes. The protection of derivative works is important for creators that create a work in one format (film), and then license a company to create the derivative work another form, such as a digital copy.

The fourth of the rights applies to allowing people to perform the work publicly. This right applies specifically to literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audio­visual works. This right protects authors and artists by requiring permission to use the protected work as part of a public performance. This right is often the subject of a performance license, which is discussed below.

The fifth of the rights applies to allowing people to display the work publicly. This right applies specifically to literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audio­visual work. This right protects authors and artists by requiring permission for people to publicly display, as for commercial purposes, works that they acquired for private display. Motion picture owners are the people who primarily enforce this right, although it legally applies to the use of paintings and sculpture in a commercial setting. This right is also discussed below.

The sixth right applies to people publicly performing sound recordings by means of a digital audio transmission (DAT). As suggested by the technology of digital audio transmission, this is a relatively new copyright, and generally applies to Internet and Broadband broadcasting. It would also apply, however, to the use of mp3 and other digital audio players used in a public setting. This right is discussed below in the licensing section.

THE BENEFITS OF REGISTRATION
As with other forms of intellectual property, copyright registration provides several benefits. The first benefit is that registration establishes a public record of the copyright claim as of the date of registration. Additionally, copyright registration allows the owner of the copyright to record the registration with the U.S. Customs Service for protection against the importation of infringing copies. Published works in particular benefit in that registration establishes prima facie evidence of the validity of the copyright and of the facts stated in the certificate if registration is made before or within five years of publication. (FN5).

Unlike other forms of intellectual property, copyright registration is needed in the U.S. to assert protection. This is because registration is required for works of U. S. origin before the copyright owner can even file an action for infringement. (FN6).

Saving the best for last, however, is the benefit of statutory damages and attorney's fees for infringing activity. For infringing activity before the date of registration, a copyright owner may recover only actual damages (lost profits) and the profits from the infringing activity. If however, registration is made within three months after publication of the work and for infringing activity as of the date of registration, the copyright owner may recovery statutory damages of $750 to $30,000 per infringement, plus attorney's fees, and up to $150,000 if the infringer knew the copying activity was infringement. (FN7). In instances of file sharing, where lost profits are generally small and there are no profits from the infringing activity, registration immediately after creation is practically a mandate for any recovery.

THE REGISTRATION PROCESS
The categories of copyright registration are a little different than the categories of works or of licensing. The categories of works are groups created by Congress according to the order in which Congress passed legislation protecting that class of works. The categories of licensing exist according to the order in which companies organized to license works that did not have organized protection. Registration, on the other hand, developed after legislation, but the Copyright Office used its rule-making capacity to categorize registration. So while there are eight classes of works and four classes of organized licensing, there are six classes of registration that only in part match the works and licensing classes. These are literary works, visual arts work, performing arts work, motion picture/AV work, sound recordings, and serial issue works.

The good news is that if something qualifies for copyright protection, it generally qualifies for copyright registration, and copyright registration is both simple and inexpensive. The easiest form of registration is electronic filing with a digital copy of the work uploaded for registration.

The copyright registrant (or the registered attorney) first provides information about the work, including the date of creation and the date of publication (if published) and the author's information. The next sections ask for the owner's contact information, the contact information for people who might want to license the work, the contact information and address for the Copyright Office to use, and finally, a certifying signature.
The copyright registrant (or registered attorney) then uploads the digital file, which is often in native format as the Copyright Office accepts 44 file formats. Acceptable formats for images include jpg, tif or tiff; the formats for word processing documents may be doc, rtf, pdf, htm, and txt. The Copyright Office also accepts database and presentation formats and compressed files of these files as well. (FN8). The last step is fee payment, which for electronic filing is currently $35, and may be by credit card. (FN9).

In the rare instance of file incompatibility, or due to the lack of capable Internet service, a registrant may send the copyright registration documents by mail or courier. For these occasions, the Copyright Office prefers the registrant to download Form CO from the Copyright Office website. (FN10). Form CO is a computer fillable form. When used with Adobe Reader or Adobe Acrobat, Form CO converts the information typed into the fields into a 2-dimensionable bar code, which allows the Copyright Office to scan the form information directly into the Copyright Office computer. After filling out Form CO, the registrant prints the form, writes a check for $50 to the Copyright Office, and sends the Form CO, plus the check and the work for registration to the Copyright Office. Using Adobe Reader (which is free) or Adobe Acrobat is important, as other programs do not create the 2-dimensionable bar code, in which case the Copyright Office charges $65.

The last alternative is filing the old-fashioned way, using forms that are customized according to the type of work. There is Form TX for literary works, Form VA for visual arts works, Form PA for performing arts works, including motion pictures, Form SR for sound recordings, and lastly, Form SE for single serials. As these forms require manual handling, the filing fee is $65.

Although the Copyright Office still accepts microform, photographs, slick advertisements and color photocopies, electronic media such as audiocassettes, videocassettes, CDs, and DVDs are also accepted. (FN11). An important consideration for mailed material is that the Copyright Office is irradiating all mail to kill harmful organisms The Copyright Office suggests that any CD and DVD be packaged in standard full-sized jewel box as mail irradiation weakens slim-line cases.

FN1) This posting is Part 1 of a series on Copyright.
FN2) 17 U.S.C. § 102(a).
FN3) 17 U.S.C. § 102(b).
FN4) 17 U.S.C. § 106.
FN5) 17 U.S.C. § 410(c).
FN6) 17 U.S.C. § 411(a).
FN7) 17 U.S.C. §§ 412, 504(c), 505.
FN8) U.S. Copyright Office, Help: List of Acceptable File Types, Revised: 16-Jun-2009, http://www.copyright.gov/eco/help-file-types.html
FN9) U.S. Copyright Office, Fees, Revised: 17-Sep-2009, http://www.copyright.gov/docs/fees.html.
FN10) U.S. Copyright Office, Copyright Notices, http://www.copyright.gov/forms/.
FN11) Copyright Office, Form CO Instructions, Revised 08/2009, http://www.copyright.gov/forms/formco2d-ins.pdf

Minnesota White Deer

November 1, 2010 Dennis E. Simon, Chief, Wildlife Management Section, Division of Fish and Wildlife, 500 Lafayette Road, DNR Building, Saint Paul, Minnesota 55155-4020 FAX to 651-297-4916 Dear Chief Simon, This letter is in response to your arguments in your October 5th letter to Mr. and Mrs. Dreher regarding the hunting of white deer. As you are likely aware, your letter is posted on Facebook, to which a friend directed me.

You argued, "protecting albino animals would be endorsing a rare genetic anomaly that could lead to other long-term problems in the local deer population." Your argument is valid only if protecting albino animals actually leads to other long-term problems in the local deer population. The facts, however, do not support your theory as the albinism trait and its associated problems die with the white deer unless it successfully mates, which is unlikely unless three factors occur. Instead, hunting deprives a natural predator of its prey and assures the destruction of the white deer.

First, the white deer young must survive long enough to reach maturity. You note that "[a]lbino animals lack pigments in their eyes and skin; thus, they are more susceptible to other problems such as vision loss and skin lesions." In other words, white deer young are more susceptible to death from natural predation and illness than their non-albino brethren. Thus, young white deer are less likely to reach maturity, and as young deer, albino or not, may not be hunted, hunting adult white deer does not affect prevent any suffering of the young white deer.

Second, to propagate the white deer gene and its associated anomalies, the adult white deer must survive long enough to mate. You note that "[a]lbinos [] suffer much higher natural mortality rates because they are much more visible to predators." Because of their vision problems, white deer are also less likely to see natural predators and if in addition are ill, as you stated, the white deer is too weak to flee danger. With this triple hazard to their lives, the white deer are more likely to die of natural predation, and are less likely to survive long enough to mate, even without hunting.

Third, the white deer must actually mate to propagate the trait. As you noted "[a]lbinism is a recessive genetic trait." As you may recall from genetics, two genes are present in each deer for color, each parent contributes one gene, a white deer carries two recessive albinism genes, and a normal appearing deer may carry one albinism gene and one normal gene, or carries two normal genes. Thus, a white deer mating with any deer would cause the fawn to carry at least one of the recessive white deer genes, i.e., nature as nature intended, but the odds of a white deer propagating another white deer depends on the prevalence of the recessive white gene in the deer population.

Based on the statistics of recessive genetics, and that according to one Facebook post there are only six white deer in the park (or less, now that one was shot and killed), I believe that less than one in sixty-four (64) deer in the general population of the park carry one of the recessive white deer genes. (Perhaps you have actual statistics?)

As such, the probability of a white deer mating with another deer and propagating a white deer fawn is 1/64 times 1/4 (the recessive cross mix), or one in two hundred fifty-six (256). This 256 number assumes that a white deer is just as likely to survive to maturity and is equally likely to mate as a normal deer.

Both of these assumptions, however, are likely false and overstate the odds. As you noted, a white deer is less likely to survive to maturity and to mate. Include that defective (vision loss) and ill (skin lesions) animals are generally shunned from mating, the likelihood of a white deer mating is less likely, which means that a white deer is unlikely to propagate its long-term problems in the local deer population.

Lastly, your arguments imply that white deer hunting aids nature. Humans, however, are the only predators capable of seeing deer with magnification and killing them without bodily contact, i.e., with guns or arrows from afar. As the white fur of the white deer increases the likelihood that a hunter would see an adult white deer, and their poor eyesight and health decrease their chance of escape, allowing white deer hunting assures a 100% kill. This kill then deprives a natural predator of its prey, and forces the natural predator to kill another animal perhaps not as defective or ill. Consequently, the hunting of white deer interferes the natural predation in the park, and with their very low numbers, unnecessarily ensures their destruction.

In summary, allowing the hunting of white deer does not affect "other long-term problems in the local deer population," interferes with the usual deer predators, and unnecessarily ensures their destruction. Thus, your arguments against protecting white deer from hunting are unfounded. Please reconsider, and ban the hunting of white deer. Thank you.

Best Regards,

Gerald R. Prettyman

On Heart Attacks, Aspirin and Lying Down

There is another urban story in the rounds regarding what to do when a life-threatening event strikes. As is usual with these stories, the story of taking aspirin for a heart attack but not lying down is true in part, largely false, and needs a HUGE caution sign with further information.

The idea of taking aspirin for a heart attack dates back to 1991 with a public statement by an emergency medical doctor, but who had not done an actual study. (1). Even though almost 20 years have passed, the research regarding using aspirin to treat heart attacks is still from informal observation, i.e. reviewing the charts of people after a heart attack and seeing that people on aspirin generally lived longer. There is as yet no actual medical research study of placing some people on aspirin and using others as 'controls.' That is likely because the patent on aspirin expired decades ago and no drug company will fund an expensive test without a patent to control the market.

The first flag on this email is that it states an EMT (unnamed) suggested this treatment, but the email did not also include a confirmation from a named doctor or pharmacist, or cite another medical authority. Bayer (the aspirin company), in fact, received a warning letter from the FDA that such labeling and advertisement is illegal. (2). As the FDA warned Bayer, there are several situations in which aspirin should NOT be taken, even during a heart attack, and the consumer labeling would be too complex for a layperson to understand.

Even the American Heart Association has retreated to cautiously state that "research shows that getting an aspirin early in the treatment of a heart attack, along with other treatments EMTs and Emergency Department physicians provide, can significantly improve your chances of survival." (3, Emphasis added.)

Second, while the FDA acknowledges the idea of taking aspirin during the onset of a heart attack, the FDA does not discuss dosage, and in light of the Bayer warning, no authority likely would without a test that no one will perform. (4). Outside of the U.S., one or two of the 81-mg (a.k.a., child's aspirin) seems to be the suggested dose. (5). Bayer reported to the FDA that AspirinCardio, an aspirin-drug it markets OUTSIDE the U.S., states to take two of the 81-mg sizes in the event of a heart attack. (6). Bayer, however, did not state whether they made an actual study, or decided that recommending 2 pills would double the profit over recommending 1 pill.

Importantly, in the event of a heart attack, DO NOT take extra-strength size aspirin, and especially do not take the Bayer "crystal" aspirin. This formulation is dangerous because it contains 850 mg of aspirin (five times Bayer's suggested dose, which may cause stomach bleeding) plus caffeine, which raises blood pressure. (7).

The third concern is that if you are going to take aspirin during a heart attack, consider a chewable aspirin instead of swallowing a whole pill. The chewable version seems to work faster to reduce clotting than swallowing a whole pill. (8).

Lastly, challenge every email-based health advisory. This root of this "don't lie down" myth is well over a year old, yet EMTs and hospitals continue to place heart attack patients flat on a gurney or flat on a bed. (3). This fact alone is a certain signal that the whole email is to some degree false.

Also raising the caution flag is that this email is a revision of a March 2009 version that also lacks authoritative references. (1). Two other troubling aspects of this email are that early distributors that failed to substantiate the facts. One was a member of a group generally better known for name calling than fact checking. (9). Another source recommended Crystal Bayer for heart attacks under the title "Aspirin Crystal: Heart Attack’s New Dear Friend" from Bonsai International News and Reviews – of India. (10). Since when does heart attack have a "dear friend?"

(1) Barbara and David P. Mikkelson, Snopes.com, Bedside Companion, last updated: 1/12/2010, http://www.snopes.com/medical/drugs/aspirin.asp.
(2) Public Health Service, Food and Drug Administration, Warning Letter to Bayer HealthCare LLC, 10/27/2008, last updated: 07/08/2009, http://www.fda.gov/ICECI/EnforcementActions/WarningLetters/2008/ucm1048456.htm.
(3) Aspirin in Heart Attack and Stroke Prevention, American Heart Association, undated, http://www.americanheart.org/presenter.jhtml?identifier=4456.
(4) Dept. of Health and Human Services, Food and Drug Administration, Aspirin: Questions and Answers, last updated: 06/18/2009, http://www.fda.gov/Drugs/ResourcesForYou/Consumers/QuestionsAnswers/ucm071879.htm
(5) Robin Parks, MS, Aspirin for heart attack and unstable angina, last updated: May 14, 2007, http://health.yahoo.com/heart-medications/aspirin-for-heart-attack-and-unstable-angina/healthwise--tx4214.html, (citing Danchin N, Durand E (2006). Acute myocardial infarction, search date August 2004. Online version of BMJ Clinical Evidence. http://www.clinicalevidence.com.)
(6) Bayer, AspirinCardio, 11/26/03, Aspirin® in cardiovascular indications including primary prevention indications, http://www.fda.gov/ohrms/dockets/ac/03/briefing/4012B1_05_Appd%202-%20Cardiovascular%20Indications.pdf.
(7) Bayer Aspirin Pain Reliever Extra-Strength Quick Release Crystals, 20-Count Pouches (Pack of 2), http://www.amazon.com/exec/obidos/ASIN/B002GU79LK/, http://www.snopes.com/medical/drugs/aspirin.asp
(8) Harvard Health Publications, Aspirin for heart attack: Chew or swallow?, May 2005, http://www.health.harvard.edu/fhg/updates/update0505a.shtml.
(9) John Vescuso, NEW Aspirin - a reminder!, 2/27/2010, Valley Forge Patriots - Tea Party Conservatives, http://www.meetup.com/VFP-TeaParty09/messages/9324021.
(10) Bonsai International News and Reviews, Aspirin Crystal: Heart Attack’s New Dear Friend, 1/7/2010, http://www.newsandreviews.in/index.php/KnowNow/?title=aspirin-crystal-heart-attack-s-new-dear-.

Copyright – Part I: Out-of-print and out-of-touch

Congress has a duty to "promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." (1) Of these rights, the most contested and contentious area is undoubtedly the copyright. This article looks at a significant copyright issue in the print media and in the entertainment industry and how consumers drive infringement.

Print Media

In 2004, Google drew both praise and criticism by scanning and posting on Google a copy of almost every book and magazine from select libraries.

On the praise side, researchers and the public were finally able to access out-of-print books and periodicals, which are notoriously time consuming and expensive to find. Where but Google Books, for example, could a modern day person find the 1904 series "The Works of Daniel Defoe" by Daniel Defoe and Howard Maynadier (2) or read the June 15, 1953 edition of Life magazine about the coronation of Queen Elizabeth? (3)

The criticism came from The Authors Guild, the Association of American University Presses, the Association of American Publishers and other publishers. The posting rankled some people so much that The Authors Guild sued on behalf of three of its author members stating, "[i]t's not up to Google or anyone other than the authors, the rightful owners of these copyrights, to decide whether and how their works will be copied." (4)

Google's defense was to assert fair use (discussed later), and a concept called "sampling," i.e., "[a]t most we show only a brief snippet of text where their search term appears." (5) The Electronic Frontier Foundation, which "battles for digital freedom" also weighed in, asserting that fair use favored Google. (6) Neither defense was really successful, however, because fair use has statutorily defined applications, which did not apply, and sampling really means a small part, and half or more is clearly not a sample.

Fortunately, The Authors Guild and Google settled. (7) The authors and publishers are to receive $60 per copy, for at least $45 million, with $34.5 million to set up a Book Rights Registry, i.e. an ASCAP equivalent entity for writers, and of course, a chunk for the lawyers. (Note: The settlement consolidates multiple lawsuits, which will likely be appealed separately on different points of law.)

Entertainment

The other high visibility aspect of copyright is in the field of music and video entertainment. Until 1984, there weren't many problems with copyright infringement of either. Disc records (33, 45, etc.) has so many flaws that the public could not make a good copy, and copied magnetic tape (cassette or 8-track) suffered from distortion and degradation.

Meanwhile, Sony released the Betamax video cassette for the time-shifted viewing of television, and even the Supreme Court accepted that "time-shifting may enlarge the total viewing audience and that many producers are willing to allow private time-shifting to continue." (8) The central issue feared by the entertainment studios was the home or commercial storage of copied content that would result in a "great deal of harm" because "the copyright owner has lost control over his program." (9) By a 5-4 margin, the studios lost because they failed to show this was true.

Since then, the studios and industry groups have been careful to monitor and adopt technology only when it could either control the technology, persuade Congress to legislate penalties for unauthorized copying, or both. For example, in the 1990's, as Congress was harmonizing U.S. copyright law with international treaty, the studios enlisted the help of Rep. Sonny Bono to revise copyright law to forbid the time-honored concept of reverse engineering if the product was subject to copyright protection. (10)

The studios then used technology called "Content Scramble System" (CSS) and coded DVDs so people could not copy a DVD or watch imported DVDs. Of course, the new law is only a U.S. law, so a teenager in Norway reverse engineered a DVD player and created a program he called De-CSS so he watch a DVD he had bought but couldn't watch on his DVD player. He gave the program to a friend, and in short time, millions of people became criminals. The studios, not surprisingly, starting suing U.S. users of the De-CSS program and similar encoding-cracking programs. (11) In 2004, the studios also adopted the now familiar hard-line warning seen before every movie.

The unauthorized reproduction or distribution of this copyrighted work is illegal. Criminal copyright infringement, including infringement without monetary gain, is investigated by the FBI and is punishable by up to five years in federal prison and a fine of $250,000.

While encryption, law and threats have had some curtailing affect to copyright infringement, the real disincentive occurs when the economics of rental and purchase prices achieve what many people have long said was the best option - the studios need to lower the acquisition price of purchases. There are two examples of this affect.

Driving Infringement

Currently, there are 50 million DVD sales monthly for about $18 each. (12) This sounds great for the studios until you factor in that DVD sales fell almost 14% to $5.4 billion in the first half of 2009. (13) While the move to downloaded content for the Apple iPod and similar portable players accounts for part of the decrease, the 8% rise in DVD rentals to 175 million DVD rentals each month at an average price of $3.50 says that the DVD is still a strong force in American video entertainment.

In addition, there are companies still trying to legally break CSS encryption. To legally sell a CD or DVD player, a device maker must have a CSS license. Kaleidescape bought such a license and sells an $8000 system for copying a DVD, and then playing the digital content without the DVD. Sued by the licensor for breach of contract, Kaleidescape lost an appeal on the scope of the contract, and is likely to lose on remand.

Here's the interesting part: The complaint did not allege copyright infringement, probably because the Kaleidescape system cannot replicate or distribute the copied DVD or CD. The real issue, however, is that the Kaleidescape system cannot distinguish between the user's purchased movies and those the user may have borrowed or rented. (14) Kaleidescape attempted to divert its liability by including a license agreement that mandates that a user will "never to load or permit someone else to load a commercial DVD or CD onto your Kaleidescape System ... that you do not rightfully own and possess." (15) Even so, a user can copy a DVD and create a library for unauthorized time-shifting, just as Sony feared.

Real Networks developed DVD copying software in 2008 and a $30 DVD copying system in early 2009. For its efforts, Real Networks received preliminary injunctions on both. The studios' attorney, Bart Williams, analogized DVD copying as using renting a car, buying a theatre ticket, or having a locker room press pass, and then keeping the car, filming the movie in the theatre, or stealing from the players. (16)

At one point, Kaleidescape tried a defense that people are not going to spend $8000 just to copy a bunch of $3.50 rentals. They know better. Apple's iTunes store (17) and the Napster file-sharing case (18) show that people want and will get inexpensive information and entertainment legally, illegally or in combination.

Overall, the intellectual property system works as envisioned more than 200 years ago. The public receives the promoted Progress of Science and useful Arts, and the Authors get compensated. The studios and industry groups need to pay attention. The more they continue to squeeze for high profit margins, the more out-of-touch they become with their market and technology.

Endnotes
(1) U.S. Constitution. Article I, Section 8.
(2) Volume 9 is available at: http://books.google.com/books?id=VioVAAAAYAAJ.
(3) Available at: http://books.google.com/books?id=A0gEAAAAMBAJ.
(4) Elinor Mills, CNET News, "Authors Guild sues Google over library project", September 20, 2005, available at: http://news.cnet.com/Authors-Guild-sues-Google-over-library-project/2100-1030_3-5875384.html.
(5) Available at: http://googleblog.blogspot.com/2005/09/google-print-and-authors-guild.html.
(6) Fred von Lohmann, Electronic Frontier Foundation, "Authors Guild Sues Google", September 20th, 2005, available at: http://www.eff.org/deeplinks/2005/09/authors-guild-sues-google.
(7) Roy Blount Jr., The Authors Guild, "$125 Million Settlement in Authors Guild v. Google", October 28, 2008, available at: http://www.authorsguild.org/advocacy/articles/member-alert-google.html.
(8) Sony Corp. V. Universal City Studios, Inc., 464 U.S. 417, 443 (US 1984).
(9) Sony, 464 U.S. at 451, citing 480 F. Supp. at 467.
(10) Digital Millennium Copyright Act, 17 U.S.C. §1201 (2009).
(11) See e.g., Universal City Studios, Inc. v. Reimerdes, 111 F. Supp. 2d 294 (S.D.N.Y. 2000); and United States v. Elcom, Ltd., 203 F. Supp. 2d 1111 (ND Cal. 2002).
(12) Bart Williams Munger, Tolles & Olson, State Bar of California Telephone Seminar, "Winning Strategies for Securing a TRO and/or Preliminary Injunction in IP Cases," October 27, 2009.
(13) Douglas A. McIntyre, "DVD Sales Crushed By Rentals, As Apple (AAPL) And Amazon (AMZN) Rise", September 22, 2009, available at http://247wallst.com/2009/09/22/dvd-sales-crushed-by-rentals-as-apple-aapl-and-amazon-amzn-rise/.
(14) DVD Copy Control Association, Inc., v. Kaleidescape, Inc., H031631 at 4, Santa Clara County Super. Ct. No. CV031829, Filed 8/12/09.
(15) Kaleidescape Service and License Agreement, provision 7, available at https://www.kaleidescape.com/activate/index.php.
(16) Bart Williams, State Bar of California, supra.
(17) Dawn C. Chmielewski, L.A. Times, "Hottest tracks to cost $1.29 at ITunes starting April 7", March 26, 2009, available at: http://articles.latimes.com/2009/mar/26/business/fi-cotown-itunes26.
(18) David Kravets, Wired, "Napster Trial Ends Seven Years Later, Defining Online Sharing Along the Way" August 31, 2007, available at: http://www.wired.com/threatlevel/2007/08/napster-trial-e/.